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WOMEN AND THE LAW: MEDIATION AS A TOOL FOR FOSTERING FAMILY UNITY

03-06-2018 |  By:  |  Comments

By Jackline Polo

 

INTRODUCTION

Mediation is a dynamic, structured, interactive process where a neutral third party assists disputing parties in resolving conflict through the use of specialized communication and negotiation techniques.

Mediation is a continuation of the negotiation process by other means whereby instead of having a two way negotiation, it now becomes a three way process whereby the mediator, a neutral third party, assists the parties in identifying the problem and coming up with a viable solution that is mutually satisfying to both. Mediators are individuals trained in negotiations skills, who bring opposing parties together and attempt to work out a settlement or agreement that both parties accept. The role of a mediator is not to give solutions to the dispute but assist the parties to come to an agreement.

 

MEDIATION IN THE CONSTITUTION OF KENYA

Article 159 of Constitution of Kenya, 2010 recognizes and provides for Alternative forms of Dispute Resolution (ADR) including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms. The Article provides that ADR shall be promoted as long as they do not contravene the Bill of Rights and are not repugnant to justice or inconsistent with the Constitution or any written law. As part of the ongoing judicial transformation, the Judiciary has embraced mediation as one of the ways of reducing the backlog of cases in court.

FAMILY MEDIATION

Mediation is one of the most successful ways of resolving disputes. The most ideal situations where mediation is recommended or most effective are where the disputants have an existing relation which they would like to foster beyond solving the dispute. e.g. in the family set up or an existing business relationship. This is partly because Mediation is an informal process in which the disputants are free to engage without too much technicality and legal requirements of strict proof and tangible evidence.

With a view to enhancing family unity and building family relations, FIDA Kenya advocates for mediation at the first instance as way of settling family concerns. Over 70% of all the cases received by FIDA Kenya are resolved through Mediation, the remaining about 20% to 25% are the ones that go to court.

The kind of cases solved through family Mediation are; child custody and maintenance, husband and wife differences, disputes involving land and inheritance.

Mediation is, however, not applicable in the case of abuse, divorce or separation: where there is violence or threats of harm, sexual violence and threats to harm or threat to life.

BENEFITS OF MEDIATION

  • The parties come up with their own tailor-made solutions without interference from others. It is a win-win process.
  • Mediation is conducted in private. It is, therefore, a confidential process. The process educates the parties to the dispute and gives them the opportunity to express their issues.
  • It is also relatively affordable in comparison to the court process.
  • It fosters family unity by giving the disputants a platform to talk about their issues and find a common solution that is workable for all of them.
  • Usually takes far less time to reach a final resolution than if the matter were to go to trial.
  • It is more informal and has no technicality of rules - the parties themselves may select the most appropriate decision-makers for their dispute. In addition, they may choose the applicable law, place and language of the proceedings.
  • People have a chance to tell their story as they see it.
  • It is more flexible and responsive to the individual needs of the people involved.
  •  The parties' involvement in the process creates greater commitment to the result so that compliance is more likely.
  • It is more likely to preserve goodwill or at least not escalate the conflict, which is especially important in situations where there is a continuing relationship.

CHALLENGES OF MEDIATION

  • Lack of information and knowledge by most disputants on what Mediation is and how it works.
  • Lack of trust among the participants which may lead to poor communication further complicating the process.
  • The voluntary nature of the process means parties may choose not to attend the Mediation.